Review, Owning Ideas: The Intellectual Origins of American Intellectual Property - Fordham Intellectual Property, Media & Entertainment Law Journal
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Review, Owning Ideas: The Intellectual Origins of American Intellectual Property

Review, Owning Ideas: The Intellectual Origins of American Intellectual Property

Hoe’s revolutionary 1843 rotary printing press, U.S. Patent 5,199.

The current harvest of academic research in the field of the history of intellectual property is abundant and nourishing. Besides the praiseworthy Research Handbook on the History of Copyright Law, published by Elgar in 2016, many other recent publications shed necessary light on past legal practice in the field. While the historical legal practice in intellectual property law might seem irrelevant in determining cases these days, the Supreme Court’s reliance on such practice in these types of cases demonstrates that these academic contributions are not only enlightening in the theoretical sense but can potentially provide practicing lawyers in the field new perspective on contemporary legal problems. In this context, the significance of Professor Oren Bracha’s recent contribution, Owning Ideas: The Intellectual Origins of American Intellectual Property, 1790-1909, is more fully appreciated. Bracha sets out to chart the gradual development of American intellectual property jurisprudence during the Nineteenth Century to demonstrate that current fundamental principles of intellectual property law were, in fact, unsettled matters of law during an extended period of American history. The work also attempts to tie the development of important legal doctrines, such as fair use, to general technological advancements in the field of commerce by describing the impact of the demands of the commercial and industrial sectors upon American legal practice.

For example, the historical analysis of the scope of originality in early American jurisprudence and in particular the survey of several of Joseph Story’s landmark decisions in the field of copyright shed light on the dramatic shift in the understanding of this frequently debated legal concept. The book demonstrates that the ongoing debate concerning the scope of originality was already taking place in the 1830s and that the elasticity of the term allowed different courts in different decades to either permit or forbid the printing of compilations or derivative works.

The analysis of these changes not only allows a better understanding of the historical origin of these legal concepts but more importantly, demonstrates that such fundamental concepts such as fair use or originality have regularly changed to accommodate technological developments or varying economic ideologies.

It is almost impossible to cover the historical context of all the crucial doctrines in the field of intellectual property, but the one concept that is mentioned several times in the book that does not receive satisfying analysis is State Patents. The work refers to the fact that such patents existed in the early 19th century, but the reader never finds out why and how the practice ended. Other scholars such as Camilla A. Hrdy have made significant contributions in this context, and the readers’ understanding of the reasons behind the demise of State Patents would have only further bolstered the convincing argument that the book makes concerning the influence of laissez faire economic principles upon the American intellectual property regime.

Despite these minor shortcomings, the book is highly recommended, not only for academic researchers of the field, but for any practicing lawyer that wishes to understand and perhaps question the most basic notions of intellectual property jurisprudence.

Shaoul Sussman

Shaoul Sussman is a second-year J.D. candidate at Fordham University School of Law and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal. He is interested in the intersection of intellectual property law and political philosophy.